Michigan Court Decision Could Bring About Gay Marriage for 37 States

                                                                                     

By Brian Dickerson

Detroit Free Press columnist

 

ZOOM

April DeBoer, second from left, sits with her adopted daughter Ryanne, 3, left, and Jayne Rowse, fourth from left, and her adopted sons Jacob, 3, middle, and Nolan, 4, right, at their home in Hazel Park, Tuesday, March 5, 2013. The lesbian couple's desire to adopt each other's children has grown into a potentially ground-breaking challenge to Michigan's ban on same-sex marriage. The two Detroit-area nurses filed a lawsuit to try to overturn restrictions on adoption by same-sex partners. But at the judge's invitation, the case has taken an extraordinary turn and now will test the legality of a 2004 constitutional amendment that says only marriage of a man and woman is recognized in Michigan. (AP Photo/Paul Sancya) / AP

Last month, when he and four of his colleagues struck down a federal law that denied legal recognition of same-sex marriages, U.S. Supreme Court Justice Anthony Kennedy insisted their decision would have no impact on states that prohibit such unions.

But Justice Antonin Scalia, who was on the losing end of the 5-4 ruling in United States v. Windsor, wasn’t reassured. The Windsor majority’s conclusion that federal lawmakers who sought to outlaw same-sex marriage could have been motivated only by a “bare desire” to degrade and humiliate gay people, Scalia wrote in his dissent, made it inevitable that the same majority would ultimately reject all such bans.

“How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples’ marital status,” Scalia added bitterly. “It is just a matter of listening and waiting for the other shoe.”

If he’s right about the high court’s trajectory — and almost everyone on either side of the same-sex marriage controversy believes he is — Michigan may well be poised to serve up the shoe Scalia is dreading.

Michigan is just one of 37 states that either bars same-sex unions outright or provides only limited legal rights to couples who enter them. Lawsuits challenging those state bans are certain to come thick and fast in the Windsor ruling’s wake; just last week, 23 plaintiffs in Pennsylvania asked the U.S. District Court in Harrisburg to throw out their state’s ban.

The American Civil Liberties Union, which is spearheading the Pennsylvania lawsuit, has promised to file similar challenges to same-sex bans in North Carolina and Virginia.

But the plaintiffs in those cases are more than a year behind April DeBoer and Jayne Rowse, two Oakland County nurses who sued in 2012 to challenge the constitutionality of a Michigan statute that prohibits them from jointly adopting the three special-needs infants they had adopted individually.

U.S. District Judge Bernard Friedman, an appointee of President Ronald Reagan who was designated to hear the DeBoer case, told the couple that the more fundamental obstacle to their adoption plans was the constitutional ban on same-sex marriages Michigan voters adopted in 2004, and invited them to expand their lawsuit accordingly.

Michigan Attorney General Bill Schuette continues to defend both the marriage ban and the adoption statute, but Friedman has repeatedly expressed skepticism that either law furthers a legitimate governmental objective. He is expected to rule on cross motions for summary judgment sometime this fall.

Whatever Friedman does is certain to trigger an appeal to the Sixth Circuit U.S. Court of Appeals, which oversees federal trial courts in Michigan, Ohio, Tennessee and Kentucky. Only one other same-sex marriage case, a 2-year-old challenge pending before a federal trial judge in Illinois, has advanced as far.

It could be years, of course, before the justices who threw out the federal Defense of Marriage Act agree to review any challenge to a state ban. But there are a number of reasons Michigan’s entry could pique their attention.

The Defense of Marriage Act challenge was brought by Edith Windsor, a childless widow asserting her right to the same tax benefits enjoyed by opposite-sex marriage partners. But in his majority opinion, Kennedy pointed out that DOMA also discriminated against “tens of thousands of children now being raised by same-sex couples.”

Many legal observers think Kennedy and his colleagues may be eager to clarify the constitutional rights of all such children, whose status is an integral part of the lawsuit brought by DeBoer and Rowse.

Analysts also cite the habit of Chief Justice John Roberts’ court of second-guessing the Sixth Circuit, whose rulings have been overruled more frequently in recent years than those of any other federal circuit, including California’s.

Supreme Court rulings spawned by challenges to Michigan’s affirmative action policies have already established the parameters for such policies nationwide. Soon, what justices think of Michigan’s same-sex marriage laws could establish a similar benchmark for the rest of the country.

Contact Brian Dickerson at 313-222-6584 orbdickerson@freepress.com.